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11:0254(53)NG - NTEU and HHS, Region IV -- 1983 FLRAdec NG

[ v11 p254 ] 11:0254(53)NG
The decision of the Authority follows:

11 FLRA No. 53
NATIONAL TREASURY
EMPLOYEES UNION
Union
and
DEPARTMENT OF HEALTH
AND HUMAN SERVICES, REGION IV
Agency
Case No. O-NG-573
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents issues
relating to the negotiability of the following two Union proposals.
Union Proposal 1
The "Competitive Area" will be established by the Agency as all
of those positions under the personnel administration and
authority of the Principal Regional Official of DHHS-Atlanta, Ga.
within the commuting area of Atlanta, Georgia.
Question Before the Authority
The question is whether, as alleged by the Agency, Union Proposal 1
is inconsistent with an Agency regulation (HHS Personnel Manual
Instruction 351-1-40) /1/ for which a compelling need exists, rendering
the proposal outside the duty to bargain under section 7117(a)(2) of the
Statute. /2/
Opinion
Conclusion and Order: The Agency has not established that a compelling
need exists for the Agency regulation which it asserts as a bar to
negotiation of Union Proposal 1 and, therefore, the proposal is within
the Agency's duty to bargain. Accordingly, pursuant to section 2424.10
of the Authority's Rules and Regulations, IT IS ORDERED that the Agency
shall upon request (or as otherwise agreed to by the parties) bargain
concerning Union Proposal 1. /3/ Reasons: The proposal requires the
Agency to bargain the "competitive area" /4/ in which bargaining unit
employees who are affected by a reduction-in-force action will compete
for retention in the Agency. Under applicable law and regulation,
agencies retain discretion to determine such competitive areas in
conformance with the standards established by the Office of Personnel
Management (See 5 CFR 351.402). The Agency neither argues nor does it
appear that the competitive area proposed by the union would be
inconsistent with those standards. The only ground asserted by the
Agency for its claim that Union Proposal 1 is nonnegotiable is that
negotiation is barred by an Agency regulation for which a compelling
need exists under the criteria prescribed by section 2424.11 of the
Authority's Rules and Regulations. /5/
The Union is the exclusive representative of a bargaining unit
consisting of all GS and WG professional and nonprofessional employees
of the Agency's Region IV office, headquartered in Atlanta, Georgia.
Region IV has six major organizational units (Operating Divisions) which
the Agency states operate in a "semiautonomous manner programmatically
within general departmental parameters administratively." Under the
Agency regulation in question the clerical and wage rate employees
within the Atlanta commuting area are in a single competitive area
encompassing all six of the Agency's Operating Divisions and all other
employees, with certain stated exceptions (see note 1, supra), are
placed in six competitive areas corresponding to the Agency's Operating
Divisions. Union Proposal 1 would group all employees in the Atlanta
commuting area in a single competitive area. The Agency argues that the
separate competitive areas for employees in each Operating Division
established by Agency regulation are essential to prevent an intolerable
amount of disruption that would occur if those employees were allowed to
compete across organizational lines. The Agency claims in this
connection that under the disputed proposal, "(m)inimally qualified
employees could displace highly qualified employees in key positions."
The Union argues, to the contrary, that safeguards exist within the
regulatory scheme to prevent the type of disruption which the Agency
claims will occur, and thus no compelling need exists for the Agency
regulation.
In agreement with the Union, the Authority finds that the Agency has
not shown that its regulation is supported by a compelling need. In
this regard, under 5 CFR 351.701(a)(4), the Agency retains the authority
to prevent an employee with a retention standing from bumping into a
position held by an employee with lower standing when such assignment
would result in "undue interruption to the activity." /6/ Thus, even in
the absence of the Agency regulation in question, the Agency could
prevent the type of disruption it asserts would occur under the
proposal. Therefore, although its regulation may be helpful or
desirable, it is not "essential" within the meaning of section
2424.11(a) of the Authority's Rules and Regulations. Accordingly, since
the Agency has not demonstrated a compelling need for the regulation
which determines the competitive areas for Region IV and since the
Union's configuration of a competitive area for Region IV appears
consistent with the permissible scope for competitive areas prescribed
pursuant to 5 CFR 351.402, Union Proposal 1 is within the duty to
bargain.
Union Proposal 2
If agency management alleges non-negotiability of any of the
Union's proposals on the basis of "agency rule or regulation"
pursuant to 5 USC 7117(a)(2), no implementation of any part of the
RIF will take place until a negotiability determination is made by
the FLRA. The union will move promptly to request such a
determination.
Question Before the Authority
The question is whether Union Proposal 2 is inconsistent with the
Agency's rights under section 7106(a) of the Statute, /7/ as alleged by
the Agency.
Opinion
Conclusion and Order: This proposal is not inconsistent with the
Agency's rights under section 7106(a) of the Statute. It is instead a
negotiable procedure under section 7106(b)(2) of the Statute. /8/
Therefore, the proposal is within the Agency's duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning this proposal.
/9/ Reasons: The Agency argues that the proposal would impose a delay
which would be tantamount to preventing the Agency from exercising its
section 7106(a) rights to layoff, reduce in grade or pay, or remove
employees because a reduction-in-force action taken in response to
budgetary or personnel ceiling constraints must be implemented at the
time those constraints are imposed. The Agency contends, in this
regard, that only through the prompt implementation of such an action
can the action serve the purpose for which it was intended.
In American Federation of Government Employees, Local 547, AFL-CIO
and Veterans Administration Medical Center, Tampa, Florida, 4 FLRA No.
50 (1980), enforced sub nom. Veterans Administration Medical Center,
Tampa, Florida v. FLRA, . . . F.2d . . . (11th Cir. 1982), the Authority
found negotiable a proposal which required the Agency to delay a
proposed personnel action which had been made the subject of a grievance
or arbitration until the litigation had concluded. In examining the
negotiability of that proposal, the Authority applied the statutory
standard that a proposed procedure, under section 7106(b)(2) of the
Statute, which does not prevent the agency from acting at all with
respect to its management rights, is negotiable even if it causes a
delay in the complete exercise of the rights involved. Under that
standard, the instant proposal likewise is within the duty to bargain.
/10/
In so concluding, the Authority emphasizes, as it did in Veterans
Administration, that there is nothing in the proposal which would either
prevent management from implementing a reduction-in-force action when
required to do so by applicable law or regulation or which would prevent
management from fulfilling any lawful responsibilities, duties, or
obligations. Moreover, the Agency, of course, is not required to agree
to the proposal. The bargaining process lends itself to a consideration
of the consequences of the proposal and should matters of concern to the
Agency, such as the potential for unreasonable delay under the proposal,
prevent the parties from reaching agreement, such considerations could
be presented to the Federal Service Impasses Panel in a proceeding to
resolve a negotiation impasse pursuant to section 7119 of the Statute.
Further, decisions of the Panel indicate that the reasonableness of any
proposal at issue is a paramount consideration in determining what
contract language will be imposed. /11/ Issued, Washington, D.C.,
February 3, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ HHS Personnel Manual Instruction 351-1-40 establishes the
Agency's competitive areas and provides in pertinent part:
351-1-40 COMPETITIVE AREAS
A. The normal subdivisions of the Department for reduction in
force are outlined below:
. . . .
5. Positions under a regional office's appointing authority
form competitive areas as follows:
a. *Each PHS Hospital, SSA Program Service Center, and SSA
Data Operations Center is a separate competitive area.*
b. *Positions within the Indian Health Service within each
commuting area form a competitive area.*
c. All other clerical, secretarial, and wage rate positions in
a commuting area constitute a competitive area.
d. For positions other than those covered by 5.a., b., or c.
above, separate competitive areas are established region-wide
within each of the following components: Office of Secretary,
Public Health Service, Health Care Financing Administration,
*Office of Child Support Enforcement,* Office of Human Development
Services, and Social Security Administration.
/2/ Section 7117(a)(2) provides:
Sec. 7117. Duty to bargain in good faith; compelling need; duty to
consult
. . . .
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
/3/ In deciding that Union Proposal 1 is within the duty to bargain,
the Authority, of course, makes no judgment as to its merits.
/4/ A "competitive area" is, in essence, the part of an agency within
which an employee who occupied an abolished position may compete with
other employees to determine, ultimately, which of them will be retained
in the agency. A competitive area is defined in organizational and
geographic terms. It typically would include a part of an agency in
which employees are assigned under a single administrative authority (5
CFR 351.402) but need not extend beyond a particular commuting area
(Federal Personnel Manual, chap. 351, subchap. 2-2.b).
/5/ Section 2424.11 provides as follows:
Sec. 2424.11 Illustrative criteria.
A compelling need exists for an agency rule or regulation
concerning any condition of employment when the agency
demonstrates that the rule or regulation meets one or more of the
following illustrative criteria:
(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national
subdivision in a manner which is consistent with the requirements
of an effective and efficient government.
(b) The rule or regulation is necessary to insure the
maintenance of basic merit principles.
(c) The rule or regulation implements a mandate to the agency
or primary national subdivision under law or other outside
authority, which implementation is essentially nondiscretionary in
nature.
/6/ Reassignment rights in a reduction-in-force are discussed in
International Federation of Professional and Technical Engineers,
AFL-CIO, NASA Headquarters Professional Association and National
Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
FLRA No. 46 (1982).
/7/ Section 7106(a) provides, in relevant part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees(.)
/8/ Section 7106(b)(2) provides:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in
exercising any authority under this section(.)
/9/ In deciding that Union Proposal 2 is within the duty to bargain,
the Authority, of course, makes no judgment as to its merits.
/10/ The proposal only requires management to delay proposed
personnel actions pursuant to its rights under the Statute. Therefore,
the Agency's additional argument that the proposal would violate
management's right under section 7106(b)(1) to determine the numbers and
types of employees assigned to an organizational subdivision is
similarly without merit for the reasons stated in Veterans
Administration.
/11/ See, e.g., In the Matter of U.S. Army Corps of Engineers and
NFFE, No. 82 FSIP 46 (Mar. 31, 1982); In the Matter of Defense Mapping
Agency and AFGE, No. 81 FSIP 17 (Apr. 8, 1981); In the Matter of SBA
and AFGE, No. 80 FSIP 30 (Oct.6, 1980).